Judge Suppresses Report on Voting Machine Security

A judge of the New Jersey Superior Court has prohibited the scheduled release of a report on the security and accuracy of the Sequoia AVC Advantage voting machine. Last June, Judge Linda Feinberg ordered Sequoia Voting Systems to turn over its source code to me (serving as an expert witness, assisted by a team of computer scientists) for a thorough examination. At that time she also ordered that we could publish our report 30 days after delivering it to the Court–which should have been today.

Three weeks after we delivered the report, on September 24th Judge Feinberg ordered us not to release it. This is part of a lawsuit filed by the Rutgers Constitutional Litigation Clinic, seeking to decommission of all of New Jersey’s voting computers. New Jersey mostly uses Sequoia AVC Advantage direct-recording electronic (DRE) models. None of those DREs can be audited: they do not produce a voter verified paper ballot that permit each voter to create a durable paper record of her electoral choices before casting her ballot electronically on a DRE. The legal basis for the lawsuit is quite simple: because there is no way to know whether the DRE voting computer is actually counting votes as cast, there is no proof that the voting computers comply with the constitution or with statutory law that require that all votes be counted as cast.

The question of whether this report can legally be suppressed was already argued once in this Court, in June 2008, and the Court concluded then that it should be released; I will discuss this below. But as a matter of basic policy–of running a democracy–the public and legislators who want to know the basic facts about the reliability of their elections need to be able to read reports such as this one. Members of the New Jersey Legislature–who need to act now because the NJ Secretary of State is not in compliance with laws the legislature passed in 2005–have asked to read this report, but they are precluded by the Court’s order. Members of the public must decide now, in time to request an absentee ballot, whether to cast their ballot by absentee (counted by optical scan) or to vote on paperless DRE voting machines. Citizens also need information so that they can communicate to their legislators their opinions about how New Jersey should conduct elections. Even the Governor and the Secretary of State of New Jersey are not permitted, by the Court’s order, to read this report in order to inform their policy making.

Examination of the AVC Advantage. In the spring of 2008, Judge Linda Feinberg ordered the defendants (officials of the State of New Jersey) to provide to the plaintiffs: (a) Sequoia AVC Advantage voting machines, (b) the source code to those voting machines, and (c) other specified information. The Sequoia Voting Systems company, which had not been a party to the lawsuit, objected to the examination of their source code by the plaintiffs’ experts, on the grounds that the source code contained trade secrets. The Court recognized that concern, and crafted a Protective Order that permitted the plaintiffs’ experts to examine the source code while protecting the trade secrets within it. However, the Court Order, issued by Judge Feinberg on June 20, does permit the plaintiffs’ experts to release this report to the public at a specified time (which has now arrived). In fact, the clause of this Order that permits the release of the report was the subject of lengthy legal argument in May-June 2008, and the plaintiffs’ experts were not willing to examine the AVC Advantage machines under conditions that prevent public discussion of their findings.

I served as the plaintiffs’ expert witness and led an examination team including myself and 5 other computer scientists (Maia Ginsburg, Harri Hursti, Brian Kernighan, Chris Richards, and Gang Tan). We examined the voting machines and source code during July-August 2008. On September 2nd we provided to the Court (and to the defendants and to Sequoia) a lengthy report concerning the accuracy and security of the Sequioa AVC Advantage. The terms of the Court’s Protective Order of June 20 permit us to release the report today, October 2nd.

However, on September 24 Judge Feinberg, “with great reluctance,” orally ordered the plaintiffs not to release the report on October 2nd, and not to publicly discuss their conclusions from the study. She did so after the attorney for Sequoia grossly mischaracterized our report. In order to respect the Judge’s temporary stay, I cannot now comment further on what the report does contain.

The plaintiffs are deeply troubled by the Court’s issuance of what is essentially a temporary restraining order restricting speech, without any motion or briefing whatsoever. Issuing such an order is an extreme measure, which should be done only in rare circumstances, and only if the moving party has satisfied its high burden of showing both imminent harm and likelihood of success on the merits. Those two requirements have not been satisfied, nor can they be. The plaintiffs have asked the Court to reconsider her decision to suppress our report. The Court will likely hear arguments on this issue sometime in October. We hope and expect that the Court will soon permit publication of our report.

Comments

Based on this, now would be the time to get an absentee ballot, period. It is known how absentee ballots are counted, and it is not known (and, in fact, prohibited knowledge) how DRE ballots are counted. For this reason alone, regardless of what the report may say, New Jersey residents should get absentee ballots.

Even better would be if there were a sufficient flood of absentee ballot requests so as to make a statement about the opinion the populace holds for DRE machines, though I doubt this will happen.

Wouldn’t it be appropriate, given the short time between now and the election, for an emergency appeal to the next court up the chain (and to courts beyond if that fails)? The people of New Jersey should have the opportunity to implement a better voting procedure in time for this November’s elections if your report indicates such a a course of action.

Despite this win for Sequoia — that is, it appears that the report will probably not be released before the Nov. 4 election — ultimately, the report will have to be released. Given what we’ve seen with the poor technical quality of all the major vendors’ systems, those of us not under an oral gag order can speculate that the AVC Advantage is just as bad as the other DREs that have been exposed to expert scrutiny. Unfortunately for Sequoia, they’re also suppressing any positive differences, if any, between this voting system platform and others on the market. Being a new resident of New Jersey, it’s time to assume the worst and start a campaign to have as many New Jersey voters request absentee ballots.

In New Jersey, any voter can now vote by Absentee Ballot for any election. You do not need a reason to vote by Absentee Ballot. Don’t feel like going to the polls? Simply vote by mail. Now there is “no excuse” not to vote!

A voter may apply for an absentee ballot by completing an Absentee Ballot Application (see below) and mailing the application to their County Clerk by mail up to 7 days prior to the election. A voter may also apply in person to the County Clerk until 3:00 p.m., the day before the election. The County Clerkcannot accept faxed copies of an Absentee Ballot Application since an original signature is required.

Is there at least somewhere we can see what the order said, and what was said in the argument that led to the order? Those would presumably be matters of public record.

I see there’s a website for the NJ courts, but don’ t know my way around it very well, or how quickly things show up there. If you or your attorneys have links or copies of the relevant content, it might be interesting to see it. (Of course, don’t let putting this stuff up interfere with working towards the timely release of the report.)

Even if the order (or the preceding argument) was not delivered in writing, there’s generally a transcript made of all court proceedings (and nowadays, the transcription is often available in electronic form). What I don’t know if how quickly those are made available in New Jersey, or how easy it is to get a hold of them.

You should submit it to the press anonymously. Then it not only has to be accepted as fact in the court of law, but you are protected by free speech rules.

In the meantime, I’d send it to wikileaks as well. There’s no way to say who put it up there or any way to link it back to ya. For a constitutionality based report to be quieted under trrade secrets or anything else, this judge doesn’t know anything.

Myers, rove, libby and others have chosen to ignore the court orders, and they did so for personal reasons. I must asked the author, will you let a rouge judge stand between you and the good of the country?

1) The fact that the company has made the argument against the report being released says, to me, that the report casts a negative light on their voting machine.

2) The manufacturer’s reaction to the report, trying to quash its being released give evidence, in my opinion, shows that they don’t want scrutiny, that they are afraid that it will show bad code or bad hardware in the device.

3) My personal opinion is that ALL voting machines should have their source code made public. This gives transparency to the voting system (along the same lines as how absentee ballots are counted), and it also allows those who are passionate for a clean voting system to suggest improvements and help make it more secure overall.

4) The actions of this company and others are essentially privatizing our election system. A voter no longer knows whether or not his vote actually counts. He only knows that some private company, who is in it for the money (and perhaps some undisclosed political affiliation) is telling him that that his vote counts, but won’t tell him how those votes are tallied and stored and protected.

Dana Cline wrote: “many of us would say to release the report and risk the wrath of the court. I certainly wish someone would…”

Anonymous wrote: “You should submit it to the press anonymously.”

These actions sound good, but would be extremely counterproductive in the end.
First. it is very likely that the order may be lifted after arguments are heard. Violating a direct court order is going to very much annoy the judge; judges do not take well to people disobeying direct court orders. You don’t want the judge to, say, dismiss the case with prejudice due to procedural violation. The correct way to deal with it is to contest the order, and argue it out.
Second, Appel has been given access to the source code. The only way he was given this access was by the court being able to guarantee to the vendor that they would not release trade secrets to the public. If Appel demonstrates that he does not consider himself bound by the court orders, do you think that he will ever be given the chance to examine source code, from any vendor, ever again? Do you think that anybody will ever be given the opportunity to examine source code? Consider the following conversation sometime in the future
“Your honor, you tell me that if we give the plaintiffs access to the source code of our voting machines, it will remain sealed under court order. However, in the case ‘New Jersey versus Sequoia AVC’ the court gave the vendor exactly that guarantee, but the plaintiffs recklessly disobeyed the court order. Why should you believe their promises, when they have demonstrated that they do not consider bound by promises they make in a court of law?”

Now is the time, based on the ancient, American tradition of “anonymous sources”, etc., for someone to leak this report to the news media. When judges ask to restrict political speak, the integrity of the state and the freedoms of the citizen are endangered.

I would not suggest that you release the report in any form since you have made yourself the prime suspect with your report of this judge’s action. BUT, we see in TV shows, movies, etc. when the person with the needed file leaves it on the desk and the inquirer reads it. Or, the report accidentally ends up in the trash and a citizen finds it in the trash. Or, a la Richard Nixon, the office is broken into and the report is missing.

I trust you have a copy that has been moved to a “safe”, off-site location. Reports can be edited and the meaning changed before release.

What we need to do is completely abolish electronic voting. It may have had honest intentions at one time in the past, but this has gotten as ridiculous.

We must return to a paper ballot system. It’s simple and it can be accounted for.

Opening up source code leaves the machine more hackable, so either way, when it comes to evoting, the integrity is gone. Also, whose to say that the source they show you is actually the source in the machine at the time we vote.

Every conclusion brings us back to paper ballots. It’s the only way to ensure zero theft of our elections.

I know the UK is different, but we have an all-paper ballot, and WE KNOW THE RESULT before the majority of the population get up the following morning!

If you’ve got a complicated ballot (like I think you have in America), you just give people a multiple-choice ballot form, PROVIDE THEM WITH THE PEN (which can be a special machine-readable one) and then use a machine to count and bundle the ballot. Any arguments – you can manually recount.

The pen gets rid of hanging chads – any spoilt votes can be separated out for manual sorting, etc etc. If the machine fails to count a thousand votes, and the majority is 1500 there’s no point challenging it. If the majority is ten, you can demand to go through the spoilt votes. And so on.

In Britain we don’t even have machines – it’s a totally by-hand count. The polls close at 10pm, by 2am the results are coming in, and by 6am we usually know who the next government is going to be.

There should be NOTHING secret about voting machine software.
Clearly venders of these machines WILL make this software available to all, if they are required to do so. If they don’t want to do so, I’m sure their competitors will jump at the chance! Either comply or you don’t sell any machines. Very simple solution – require the software to be OPEN. If it isn’t open for any and all to examine, then there really can be only one reason – the rigging of the elections.

Software of this type is trivial. It’s not “rocket science”. It’s just COUNTING.
No differential equations required. No artificial intelligence. Just counting.

This is simple. Print up election ballots. Vote on paper. With receipts.

Next… stop using those machines everywhere. Never buy a product from the company in question. Let those companies know that they will never get a contract in that state again. Only use companies that operate by standards which the state demands and which uphold the interests of the voter.

Wouldn’t it be a bummer if the report showed up on Wikileaks? The judge would be soooo pissed off because there’d be no way of identifying who put it up there, and thus no way to press contempt of court charges. What a tragedy it would be.

Some unprincipled blowhard wrote:First. it is very likely that the order may be lifted after arguments are heard. Violating a direct court order is going to very much annoy the judge; judges do not take well to people disobeying direct court orders. You don’t want the judge to, say, dismiss the case with prejudice due to procedural violation. The correct way to deal with it is to contest the order, and argue it out.

Of course, this is a perfect indictment of our system. From all evidence here, the judge is intellectually and personally not up to the task of judging the matter before her: If she hadn’t read the report, she should have. If she had read the report, she should have allowed release if Sequoia mischaracterized it. If something else is at play, she probably should be disciplined for her failure to carry out the obligations or her office as should anyone else involved. The bench in this country, like so many of our institutions, has become corrupt out of a surplus of ego and a lack of competence.

The correct thing to do probably would be to appeal it to the next court seeking removal of the order. However, it’s not likely the appeals court is going to act any more ethically and do the right thing.

If Sequoia have mis-characterised the report, she will hopefully be annoyed at them. And if the hearing IS before the vote she might even declare the machines unconstitutional. The result of that would almost certainly be very painful for Sequoia 🙂

okay, so we now know for certain the computers can easily be hacked and/or manipulated in several ways – suppressing such a report is as good an answer to the question as releasing it
the elections were, are and will be stolen
gloves off plz and trick the tricksters
one has to beat the enemy with his own weapons
did you know that in europe, USB sticks with sensitive information magically pop up in rented cars, trains and taxi’s ?

The Judge in my opinion should be in a jail cell for this. But even putting his ass in a jail cell won’t guarantee the vote is counted accurately with public oversight. Waiting until after the vote either by legal delay or demanding a recount allows the damage to be done. This is a national security problem, and it’s gone on long enough across the country. These machines — all of them must be outlawed. This is domestic terrorism by corporations and people in power. These machines are the worst thing that has ever happened to our elections. Anybody that is pro machine is the enemy. It is time to ignore these corrupt judges and corrupt laws, because these corrupt people are destroying America and already have destroyed the US Constitution. Think… Think…did harriot meyers, or dick cheney obey their court orders? These bastards don’t obey nothing, they lie, cheat and steal and it’s high time to end their game before they get us in another war and kill more people. They have to be stopped before the election, they have to be outsmarted and we need to be much more organized to the point where the fascist corporate media can’t lie or spin or blackout this topic anymore. they’ve used these machines to stack the courts and nearly every government agency.

If there is vital info in your report, it is incumbent upon you to put your report up on the Internet for all to see. Yes, you could face contempt charges, but if the report exposes corruption, you will be exposing it, along with a corrupt judge. DO NOT let this report get buried when the fate of this nation is at stake. We’ve already had two hijacked elections and many hijacked primaries this year. NO MORE!

It seems someone could sue to have the report released under the freedom of information act? Especially considering its potential impact on the election.
I predict this election will be a mess because of these damned machines.
I propose a lawsuit by the states that own theses machines against the companies to recover (tax) money spent on their fraudulently faulty voting machines. Isn’t it fraud to sell a voting machine knowing it is inadequetly secure? And then to suppress evidence of the truth!

Let the fraudulent machines be ! As no-one believes anymore in the policies of the USA, and it makes no difference who wins and who loses an election, just quiet down you folks, and set your mind on more important issues like how much meat you’ll consume today, how many innocent people you want to torture and kill today, and how to piss off anyone that might have been friendly to you. No fucking deal. America forget it, the future is to The Rest Of The World. And no — we won’t care about your plights.

Although I’ve been voting absentee in NJ since they bought the Sequoia DREs (I was a legal absentee then since I was working up at Harvard at the time, and subsequently the law has been changed to “no fault absentee” so people don’t have to supply a reason in order to get a paper ballot), and I know that the paper ballots (at least here in Mercer County) DO get counted (because I elected myself committeewoman recently via a single write-in vote), and I have applied to vote absentee again THIS November, the problem is that the non-write-in portions of the absentee ballot (namely, the candidates who are officially running for office) are also counted BY COMPUTERS with secret and potentially dubious source code and hardware and so on. We have no way of knowing if those absentee ballot vote counts are correct, unless some candidates file for recounts. And even then, there’ll only be a hand-count of the absentee ballots in those particular races being officially recounted. So, please DO vote absentee — at least there’s something TO recount that way — and please also encourage losing candidates to file for a recount. Those are the best things we can do for now to ensure election integrity in the Garden State, other than continuing to fight to get rid of the DREs (entirely — no VVPATs).

Since you can’t establish the chain of custody though the Post Office and the County elections office prior to the counting and tabulation, No one can guarantee that all the votes are counted, period.

Making vote-by-mail easier is going in the wrong direction. Only when citizens demand that elections become a priority operation of local government supported by sufficient resources and start getting personally involved in the process (as poll workers, poll watchers, ballot counters, etc.) will there be a return to fair, open, and accurate elections.

This is great news. You have an opportunity to really make an issue out of three of my favorite issues, election fraud, suppression of public records, and courts acting without jurisdiction and contrary to law.

Any order prohibiting the sharing of documents filed with a court violates the First Amendment freedoms of speech and the press and the Sixth Amendment right to a public trial. Although the language of these amendments seems to mean that they are absolute, Congress, the legislatures and the courts have seen fit to limit them, but only to protect national security (that’s a favorite), privacy of victims, juveniles, and those involved in family law proceedings, and disclosure of trade secrets, but not opinions about trade secrets.

An order can be entered prohibiting the disclosure of a trade secret, such as the source code if it actually met the legal standard for a trade secret which is does not. However, I expect that the experts’ report does not disclose the ‘trade secret’ source code, and therefore, any order prohibiting its disclosure is contrary to law.

I have a few ideas about how you can make this public. One is to test this judge’s order by appealing it, or if that is not allowed by the NJ court rules, then you could take it to Federal court. Naturally, this takes time. Simply requesting reconsideration is almost never effective, and it may result in losing the right to appeal, as in it can be a trap.

Of course, since the judge hasn’t had the guts to reduce her oral order to writing and file it yet, the time for any appeal has not started ticking. Unfortunately, the clock is winding down for getting this out and having any impact on how the election is conducted.

If you or any expert who has access to the report are not plaintiffs, then you could just ignore the order because the court has no jurisdiction over anyone except parties. This applies especially if you were not in court to hear the oral order as second hand word of mouth notice is not sufficient, and it applies even if the judge files a written order and you are named in it. Of course, it is even less risky if you are not.

If you are not a named party in the lawsuit and you were not present in court, I strongly suggest immediately releasing the report. The judge would have no legal ground to stand on to sanction you for it, and if she tried, I would not appear before her without a summons if I were you.

Of course, the lawyers and the judge may tell you that you will be charged with contempt, but violation of an order entered without jurisdiction is not contempt. Furthermore, violation of an order which you have not been formerly notified of is not contempt.

In addition, if you don’t live in NJ or any one of the experts don’t for that matter, that expert could publish the report in flagrant disregard of the judge’s order. Why? Because an order for arrest on contempt of court charges cannot cross state lines, and you cannot be extradited from another state on a contempt of court charge.

Of course, you could also remind the judge that she is violating the 1st and 6th Amendments and that is a criminal violation of 18 USC § 242, and since she was asked to prohibit disclosure, then she and those who asked would be in violation of 18 USC §241. Naturally, that would piss her off, so the Plaintiffs and their attorneys will probably not want to do that.

However, I would be happy to go to NJ and give this judge the legal ass kicking of her life if anyone can cover my expenses. Just so you understand, I would not be representing anyone other than myself in an effort to obtain these documents for public disclosure.

Once again, I suggest that one of the experts release the report right away before any written order is entered and served on the experts. This would get the report out right away, and it would protect you and the others from giving the judge and Sequoia the time to cover the bases necessary to obtain entry of an order that may be a lot more enforceable especially since they will most likely read this and now have a clue about all of their problems with enforcing the current “order.”

Finally, optical scan computers also count in secret, and when I represented Clint Curtis, John Russell, and others in contesting Florida’s 2006 elections, we found that the results on them were also rigged. So, rushing out to vote early or voting by absentee ballot so that your vote is counted on an optical scanner is not a solution.

Secret vote counting and pork barrel politics are probably the main reasons why so many members of the Senate, the House, and even the Republican and Democratic Presidential candidates risked the wrath of the voters to support Bush’s Wallstreet Bailout Bill. Oh yeah, secret vote counting is not only inherently dangerous, it’s unconstitutional, too! Yes, Virginia, secret vote counting is unconstitutional, but no one in power gives a damn! They just want to stay in power by whatever means necessary.

For more info on these issues and on my work on election reform, see Project Vote Count’s Election News and Project Vote Count’s FAQ You’ll also find out how a few activists in each county can deter election fraud.

If you have any questions, please email me. I look forward to hearing from you, and I appreciate your interest in trying to let the world know what has been found about the source code.

Highest regards,

Mark A. Adams JD/MBA

P.S. For some really scary news, see Voting Machine Changes Vote, Kills Voter!http://www.liveleak.com/view?i=f7d_1222962429
For some truly scary news, see Senate Bailout a.k.a. Bank Robbery Bill to find out about the bailout bill, what caused the crisis, who really benefits, what the bailout bill will actually do, and that 74 Senators said, “Let them eat cake!”

My name is Leah and I work for Scoop, an independent news website based out of New Zealand. This week, we are launching “A Pro-Bono Advertising Campaign for US Electronic Election Integrity,” a project devoted to exposing various vulnerabilities related to the use of electronic voting machines in the November presidential election. During the coming weeks, the website at http://usacoup.scoop.co.nz/ will contain links to the most current information on electronic voting issues and other forms of election fraud such as voter disenfranchisement.

We would like to post this article on our site, if you would consent.

Please let me know. You can reach me at *protected email*

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